Crawford v. Florida Steel Corp.

• Decision Date: 08 November 1985
• Docket Number: No. BC-193,BC-193
• Citation: 478 So.2d 855,10 Fla. L. Weekly 2507
• Parties: 10 Fla. L. Weekly 2507 Avery W. CRAWFORD and Lula Belle Crawford, his wife, Appellant, v. FLORIDA STEEL CORPORATION, Appellee.
• Court: Florida District Court of Appeals

Page 855

478 So.2d 855

10 Fla. L. Weekly 2507

Avery W. CRAWFORD and Lula Belle Crawford, his wife, Appellant, v. FLORIDA STEEL CORPORATION, Appellee.

No. BC-193.

District Court of Appeal of Florida,

First District.

Nov. 8, 1985.

Rehearing Denied Dec. 13, 1985.

William A. Bald of Pajcic, Pajcic, Dale & Bald, Jacksonville, for appellant Avery W. Crawford.

Frank E. Maloney, Jr., Macclenny, for appellant Lula Belle Crawford.

John Moffitt Howell of Howell and Howell, P.A., Jacksonville Beach, for appellee.

SMITH, Judge.

The Crawfords appeal from an adverse summary final judgment in their negligence action against Florida Steel for injuries received by Crawford while on Florida Steel's premises doing repair work. We find that there are triable issues of fact concerning the employment relationship between Florida Steel and Crawford, and Florida Steel's negligent supervision of the repair work. Accordingly, we reverse and remand to the trial court for further proceedings.

Florida Steel needed maintenance work at its steel mill in Baldwin late in the summer of 1980. Robert Hutchins, the mill superintendent at the time, testified that Florida Steel employees usually did the repairs if there was time; if not, Florida Steel hired an outside contractor to assist its employees. Florida Steel must have been running short of time because it hired North Florida Erection Company, Inc. (North Florida), a steel erection company, to help with the maintenance work. There was no written contract covering the maintenance work and North Florida was paid for the work by the hour. Mr. Burnsed, the president of North Florida, supervised his employees on the job, one of whom was the appellant, Avery Crawford.

Willie Brantley, one of Burnsed's three foremen on the job, was assigned to work at the re-heat furnace. Because he was uncertain what maintenance needed to be done on the furnace, Burnsed instructed Brantley to do whatever the Florida Steel people wanted done. Brantley was told that the Florida Steel supervisor could answer his questions about the specifics of the job at the re-heat furnace.

On the day of the accident, Brantley was working at the re-heat furnace with two Florida Steel employees, Robert Kingsley ¹ and Robert Odom. Kingsley testified that there was no particular division of tasks among the three men that day, and that they worked together. On the other hand, Brantley testified that it was Kingsley who gave him instructions on what needed to be done at the re-heat furnace. ² Sometime around the middle of the day, Brantley injured his finger. He told Kingsley he was going to report to his supervisor, Mr. Burnsed, and go to the doctor. Because Brantley's departure left Kingsley shorthanded, Kingsley's supervisor requested that another man be sent to the re-heat furnace.

Crawford, who was welding troughs in another part of the mill, was notified by a Florida Steel employee that he was needed to work at the re-heat furnace to replace the injured Brantley. Crawford accordingly left his work at the maintenance shop and went to assist Kingsley at the re-heat furnace. A few minutes before the accident, Brantley returned from the doctor. Kingsley said that he needed somebody inside the furnace to check the alignment of pipes that were to be welded, and Brantley, in turn, told Crawford to do this. Crawford did not recall anyone telling him what needed to be done or how to do it. Instead, he testified that he knew what had to be done.

While inside the furnace Crawford fell into a hole, which was actually a flume, or duct, and was injured. Crawford had never worked on the re-heat furnace or been inside it before. He did not know about the hole and testified that because it was dark in the furnace, he did not become aware of the hole until his fall. Brantley and Kingsley, on the other hand, knew about the hole.

Employees of contractors working on Florida Steel's premises could get pedestal lights and drop lights from Florida Steel's supply room, as needed for work inside the furnace. There were no lights on inside the furnace, according to Crawford, when he had his accident. In contrast, Kingsley and Brantley testified that there was a light in the furnace, and Kingsley thought it was on. Brantley couldn't remember whether the light was on or off. ³

Following his accident, Crawford collected workers' compensation benefits from North Florida. He also filed this suit against Florida Steel, alleging that Florida Steel negligently failed to warn him of the dangerous conditions in the furnace. The trial court, however, granted a summary final judgment for Florida Steel based upon a finding that Crawford was either an employee of an independent contractor, North Florida, or a "borrowed servant" of Florida Steel, and in either event could not recover. This ruling is here for review.

Florida Steel has admitted in its brief and at oral argument that genuine issues of fact exist as to Crawford's employment status. The evidence is susceptible to contrary interpretations as to whether Crawford was an employee of Florida Steel with respect to the furnace repair work, an employee of an independent contractor, North Florida, or finally, an employee of joint employers--Florida Steel and North Florida. Nevertheless, Florida Steel contends that despite these genuine issues, they are not material issues because under none of these employment relationships is Crawford entitled to recover. More specifically, Florida Steel argues that if Crawford was an employee of an independent contractor, North Florida, then Florida Steel did not have a duty to warn of the dangerous conditions within the re-heat furnace because the supervisory personnel of North Florida had actual knowledge of the conditions within the re-heat furnace. Horton v. Gulf Power Company, 401 So.2d 1384 (Fla. 1st DCA 1981). Alternatively, if Crawford was a "borrowed servant" working for Florida Steel, then Florida Steel was immune from suit under the exclusive remedy features of the workers' compensation law. Berrier v. Associated Indemnity Co., 142 Fla. 351, 196 So. 188 (1939); Stuyvesant Corp. v. Waterhouse, 74 So.2d 554 (Fla.1954); and Rumsey v. Eastern Distribution, Inc., 445 So.2d 1085 (Fla. 1st DCA 1984). In the unlikely event that Crawford is the employee of joint employers, see Roberts' Fish Farm v. Spencer, 153 So.2d 718 (Fla.1963), Florida Steel contends that it is still immune from suit under the exclusive remedy features of the workers' compensation law. We agree that each of the employment relationships, in the abstract, can exist. However, we do not agree that mere categorization of Crawford's employment status here yields a final answer to the question of Florida Steel's potential liability.

Florida Steel is correct that Crawford cannot recover for injuries caused by Florida Steel's negligence if an employer-employee relationship existed between Florida Steel and Crawford. Crawford may recover if a jury could find from the evidence that he was an employee of an independent contractor, North Florida, yet was subject to some supervisory control by Florida Steel at the time of the accident, and Florida Steel negligently exercised its retained supervisory control. For this reason, we conclude that the genuine issues of fact which Florida Steel recognized in its brief and at oral argument are material and the trial court erred in granting summary judgment.

Examining the exclusive remedy features of the Florida Workers' Compensation Law, we find that Florida Steel is immune from suit only to the extent that it was required to carry workers' compensation insurance covering Crawford, or see that it was carried. Section 440.11(1), Florida Statutes (1979). It is the obligation to secure compensation which gives the employer or contractor immunity from suit as a third party tort-feasor. Jones v. Florida Power Corp., 72 So.2d 285, 287 (Fla.1954).

Under Florida law, an entity is required to provide workers' compensation protection when it is an "actual" employer of workers under its direct supervision and control or when, as a contractor, it sublets part of the contract obligation to others and thereby becomes a "statutory employer" of the subcontractor's employees. Lingold v. Transamerica Insurance Company, 416 So.2d 1271 (Fla. 5th DCA 1982). Florida Steel is clearly not a "statutory employer." We are initially concerned, therefore, only with the question of whether Florida Steel is Crawford's "actual" employer. Resolution of this issue requires us to look to the law of general and special employments. See 57 Fla.Jur.2d, Workers' Compensation, § 47.

A general employer is one who contracts directly with an employee, while a special employer is one to whom the general employer has loaned his employee. Stuyvesant Corp. v. Waterhouse, supra, and Berrier v. Associated Indemnity Co., supra. In this latter instance, the employee is known as a "special employee," or sometimes a "borrowed servant." The courts have generally agreed that the criteria for determining the existence of an employer-employee relationship for purposes of the "borrowed servant" doctrine are:

(1) whether a contract for hire, expressed or implied, exists between the employee and the alleged special employer;

(2) whether the work being done at the time of the injury was essentially that of the alleged special employer; and

(3) whether the power to control the details of work being done at the time of the accident resided in the alleged special employer.

Rumsey, supra; Hamilton v. Shell Oil Company, 215 So.2d 21 (Fla. 4th DCA 1968), later appealed 233 So.2d 179 (Fla. 4th DCA 1970), cert. den., 237 So.2d 762 (Fla.1970); see generally, 1C Larson, Law of Workmen's Compensation, § 48.00 (1985). The factors referred to are not equal, the first factor being the most important, and the second and third factors being merely indicators of the existence of the first factor. Shelby Mutual Insurance Company...